Monday round-up

Posted Mon, January 28th, 2013 8:33 am by Marissa Miller

On Friday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the National Labor Relations Board violated the Constitution. Because of the political consequences of this decision, as well as the split among the circuits that this decision creates, there is a strong possibility that this case will ultimately reach the Court. Lyle reports on the decision for this blog, and additional coverage discussing the likelihood of review by the Court comes from Tom Schoenberg of Bloomberg News (here and here), David Savage and Jim Puzzanghera of the Los Angeles Times, Melanie Trottman, Jess Bravin, and Michael Crittenden of The Wall Street Journal, David Jackson of USA Today, Brad Knickerbocker of The Christian Science Monitor, Rick Ungar of Forbes, Josh Gerstein of Politico, Emily Bazelon at Slate, Charlie Savage and Steven Greenhouse of The New York Times, Robert Barnes and Steven Mufson of The Washington Post, and Garrett Epps at The Atlantic.

Although the Court’s next oral arguments are several weeks away, the weekend’s clippings also feature continuing coverage of cases that are scheduled for argument later this Term. At Reuters, Joan Biskupic reports on the efforts of the parties in Hollingsworth v. Perry, the challenge to California’s Proposition 8, to influence the Department of Justice, while at the Los Angeles Times, David Savage covers the arguments contained in the briefs defending DOMA and Proposition 8. In The New York Times, the Room for Debate discusses Adoptive Couple v. Baby Girl, in which the Court will consider the interpretation of the Indian Child Welfare Act; finally, also at The New York Times, Dan Frosch discusses the case in the context of a shortage of Indian foster parents.

Briefly:

Ethan Bronner of The New York Times and Rachel Zoll of the Associated Press report on the legal challenges to the Affordable Care Act’s birth control mandate and the likelihood that one of these cases may be headed to the Court.

At her On the Case blog for Reuters, Alison Frankel discusses the possibility that the Justice Department has changed its view on whether state-law product liability claims against generic drugmakers are barred because generics are required by federal law to carry warning labels approved by the FDA, a question at issue in this Term’s Mutual Pharmaceutical Co. v. Bartlett.

David Gonzalez of The New York Times reports on the closing of Justice Sonia Sotomayor’s elementary school in the Bronx and the Justice’s reaction to this news.

Cato @ Liberty’s Ilya Shapiro discusses the Court’s denial of cert. in Hall v. Sebelius, a challenge to government policies that deny otherwise eligible retirees their Social Security benefits if they choose not to enroll in Medicare.

At Salon, law professor Paul Campos criticizes Chief Justice John Roberts for teaching in Europe in the summer, arguing that these courses are effectively paid for by law students who “are financially wrecking themselves by borrowing those dollars to pay for useless degrees.”

The Washington Post publishes an obituary for Frank Lorson, the Court’s former chief deputy clerk, who passed away on January 11.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.